In re A.O. , 2014 Ohio 527 ( 2014 )

[Cite as In re A.O., 2014-Ohio-527.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: :
: Appellate Case Nos. 25807
A.O. : Appellate Case Nos. 25996
:
: Trial Court Case No. JC 2012-0307
:
: (Civil Appeal from Montgomery
: (County Juvenile Court)
:
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OPINION
Rendered on the 14th day of February, 2014.
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KATE L. BOWLING, Atty. Reg. #0084442, Bowling Law Office, L.L.C., 111 West First Street,
Suite 518, Dayton, Ohio 45402
Attorney for Appellant
P.J. CONBOY, II, Atty. Reg. #0070073, Staton, Fisher & Conboy LLP, 5613 Brandt Pike, Huber
Heights, Ohio 45424
Attorney for Appellee
JAMES A. ARMSTRONG, 131 North Ludlow Street, Suite 386 Talbott Tower, Dayton, Ohio
45402
Guardian Ad Litem for A.O.
MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Montgomery County Department of Job & Family Services
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HALL, J.,
{¶ 1} This matter comes before us on two consolidated appeals. In Mont. App. No.
25807, L.S. (“Grandmother”) appeals from the trial court’s order directing Ohio law-enforcement
authorities to assist in enforcement of a New Mexico judicial order for the pick-up and delivery
of her minor grandchild, A.O., to the child’s mother, appellee S.S. (“Mother”). In Mont. App. No.
25996, Grandmother appeals from the trial court’s dismissal of her complaint for custody on
jurisdictional grounds.
{¶ 2} In her sole assignment of error in both appeals, Grandmother contends the trial
court erred in determining that Ohio lacks jurisdiction over her complaint, which alleged that
A.O. was neglected and dependent and sought custody of the child.
{¶ 3} The record reflects that Mother gave birth to A.O. in California in May 2010.
Sometime thereafter, Mother began living in New Mexico.1 On or about December 26, 2011,
Mother took A.O. to Oklahoma and left the child in the care of L.A.S., a personal friend. Mother
then traveled to Arizona and California. Mother allegedly provided conflicting statements to
L.A.S. regarding when she would return for the child. On or about January 3, 2012, L.A.S.
contacted Grandmother in Ohio and explained that she no longer could care for the child.
Grandmother flew to Oklahoma and retrieved A.O. She returned to Ohio with the child on
January 11, 2012. Grandmother then filed her complaint below, alleging that A.O. was neglected
and dependent. On January 12, 2012, Grandmother received an ex parte temporary custody order.
On February 7, 2012, Mother filed a motion challenging the trial court’s jurisdiction over the
case. Following a hearing at which Mother and Grandmother appeared, a magistrate granted
1
The timing and duration of Mother’s residence in New Mexico, the central issue in this case, will be addressed more fully infra.
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Grandmother interim temporary custody on February 13, 2012.
{¶ 4} On April 19, 2012, the magistrate held a more comprehensive hearing on the
jurisdictional dispute and Grandmother’s request for an adjudication of neglect and dependency.
Following the hearing, the magistrate filed a May 17, 2012 order finding that jurisdiction existed
in Ohio. The magistrate also adjudicated the child neglected and dependent. In finding
jurisdiction in Ohio, the magistrate noted the child’s presence here and the evidence of neglect
and dependency. The magistrate also specifically noted the absence of any pending custody
proceedings in New Mexico. On January 8, 2013, the trial court denied a motion to set aside the
magistrate’s order.
{¶ 5} Prior to a dispositional hearing, however, Mother sought and received an order
from a New Mexico court granting her temporary custody of A.O. and ordering the child’s return
to that state. Upon learning of the New Mexico court action, the magistrate filed a March 5, 2013
order continuing proceedings on Grandmother’s custody complaint so that “jurisdictional issues”
could be resolved. Following telephone conference calls and additional review of the record by
the magistrate and a New Mexico court commissioner, the magistrate and commissioner agreed
that Ohio’s courts lacked jurisdiction to proceed. The magistrate later memorialized this
determination in a June 28, 2013 decision to which Grandmother objected. The New Mexico
court issued a pick-up order, requiring the child to be turned over to Mother in Ohio. On June 27,
2013, the trial court ordered Ohio law-enforcement officials to assist in carrying out the New
Mexico pick-up order. On November 5, 2013, the trial court also overruled Grandmother’s
objections to the magistrate’s finding that Ohio’s courts lacked jurisdiction and dismissed her
complaint. As set forth above, Grandmother has appealed from the trial court’s order for
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enforcement of the New Mexico pick-up order and from the trial court’s dismissal of her
complaint for lack of jurisdiction.
{¶ 6} In her sole assignment of error, Grandmother claims “[t]he trial court erred in
finding that Ohio does not have original and ongoing jurisdiction over this case.” Grandmother
contends the trial court initially held emergency jurisdiction pursuant to R.C. 3127.18(B) by
virtue of A.O.’s presence here and her allegations of neglect and dependency. She further claims
the trial court held original and continuing jurisdiction pursuant to R.C. 3127.15(A)(2) because
no state was A.O.’s “home state” when she filed her complaint and other statutory requirements
were met.
{¶ 7} For her part, Mother does not dispute that the trial court initially held emergency
jurisdiction based on Grandmother’s allegations of neglect and dependency and the child’s
presence here. Mother argues, however, that the trial court correctly found New Mexico to be
A.O.’s “home state.” Therefore, Mother maintains that only New Mexico has jurisdiction to
make custody determinations.
{¶ 8} Although the parties’ briefs address wide ranging issues—including Mother’s
fitness to have custody and A.O.’s well being—the threshold jurisdictional issue is narrow. The
Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), as codified in R.C.
Chapter 3127, “gives jurisdictional priority and exclusive continuing jurisdiction” to a child’s
“home state.” Rosen v. Celebrezze, 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶21.
Under the act, “home state” is defined as “‘the state in which a child lived with a parent or a
person acting as a parent for at least six consecutive months immediately preceding the
commencement of a child custody proceeding * * *.’” Id. at ¶31, quoting R.C. 3127.01(B)(7). In
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Rosen, the Ohio Supreme Court interpreted “home state” to include any state “that was the home
state within six months before the commencement of the child-custody proceeding.” Id. at ¶41,
citing R.C. 3127.15(A)(1).
{¶ 9} The issue in the present case is whether New Mexico was A.O.’s “home state”
within the six-months preceding Grandmother’s complaint in the trial court. If so, then New
Mexico has exclusive home-state jurisdiction to make a custody determination. Id. at ¶44. In its
November 5, 2013 decision and judgment, the trial court found that “the undisputed testimony
indicates Mother lived in New Mexico with the child from December of 2010 to December 25,
2011,” making New Mexico A.O.’s home state and conferring exclusive jurisdiction on New
Mexico’s courts.
{¶ 10} On appeal, Grandmother challenges the trial court’s statement that “undisputed
testimony” established Mother’s (and A.O.’s) residence in New Mexico for the requisite
six-month period. Grandmother contends Mother’s friend, L.A.S., testified that Mother did not
begin residing in New Mexico until sometime in July 2011. Grandmother further asserts that
Mother’s own testimony about places and dates of residence was inconsistent and not credible. In
this regard, Grandmother stresses the magistrate’s finding after the April 19, 2012 hearing that
Mother’s testimony lacked credibility.
{¶ 11} Upon review, we do not believe the trial court committed reversible error in
determining that New Mexico has exclusive home-state jurisdiction over the parties’ custody
dispute. When reviewing Grandmother’s objections, the trial court was not required to defer to
the magistrate’s earlier credibility determination. In re A.M., 2d Dist. Greene No. 2009-CA-66,
2010-Ohio-948, ¶12-13. In conducting its independent review, the trial court was entitled to
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examine the April 19, 2012 hearing transcript and reach its own conclusions regarding witness
credibility. Id.{¶ 12} We note too that the hearing transcript contains testimony to support the trial
court’s factual finding that Mother lived in New Mexico with A.O. from December 2010 to
December 25, 2011. Mother specifically testified that she moved to New Mexico in December
2010. (Hearing Tr. at 32). She explained that she lived in a house in Taos, New Mexico from
December 2010 until March 2011. (Id.). Later in her testimony, Mother stated that she had lived
in her current New Mexico residence since October 2011. (Id. at 241). Prior to that, she claimed
to have lived for three or four months in a different house in Taos, New Mexico, thereby
indicating residence there as early as June 2011. (Id.). Mother added that she had done some
“work trading” or house sitting in New Mexico even before that. (Id. at 241). Mother’s testimony
was corroborated to some extent with a copy of a March 8, 2011 lease agreement for a Taos, New
Mexico residence and an unsigned copy of another rental agreement beginning on October 1,
2011. (Id. at Exh. 1).
{¶ 13} The only testimony arguably contradicting Mother’s claims with regard to her
residence came from L.A.S. We note, however, that L.A.S. testified about Mother “house
sitting” in New Mexico before getting a place to live in Taos, New Mexico around July 2011. (Id.
at 178). Specifically, L.A.S. recalled that “at some point [Mother] did some house sitting in New
Mexico and had a house there; I believe in July of 2011, got a place to live in Taos.” (Id.). This
testimony reasonably may be read as an acknowledgment that Mother had been house sitting in
New Mexico prior to July 2011, which is consistent with Mother’s testimony that she was living
in Taos in June 2011.
[Cite as In re A.O., 2014-Ohio-527.]
{¶ 14} L.A.S. also testified about visiting Mother in Oceanside, California in early May
2011. (Id. at 208). According to L.A.S., Mother was living in a van at that time. (Id.). For her
part, Mother denied living in a van or being visited by L.A.S. in Oceanside in May 2011. (Id. at
241, 255). But even if Mother did live in Oceanside in early May 2011, that is not inconsistent
with Mother’s claim that she was living in Taos, New Mexico in June 2011. And if Mother and
A.O. resided in New Mexico in June 2011—a finding that the record supports—then the
evidence suggests they lived there for more than six months before Grandmother filed her Ohio
custody complaint in January 2012.
{¶ 15} In any event, the trial court had discretion to credit Mother’s testimony that she
and A.O. began residing in New Mexico in December 2010. Although this testimony may not
have been undisputed, it supports a finding that New Mexico was A.O.’s “home state” within the
six months preceding Grandmother’s January 2012 custody complaint. Therefore, New Mexico
has exclusive home-state jurisdiction.
{¶ 16} Grandmother’s assignment of error is overruled, and the trial court’s judgment is
affirmed.
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FAIN, J., concurs.
DONOVAN, J., concurs in judgment only.
Copies mailed to:
Kate L. Bowling
Patrick J. Conboy, II
James S. Armstrong
Mathias H. Heck, Jr.
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Carley J. Ingram
Hon. Anthony Capizzi